from the about-time dept

Back in February, we wrote about how the Sheet Metal and Air Conditioning Contractors National Association (SMACNA) had gone after Carl Malamud's PublicResource.org for buying the federally-mandated 1985 standard on air-duct leakage and posting it online. Among a variety of other things, Malamud and PublicResource.org have been trying to free up private "standards" that have been incorporated into the law. You'd be amazed at how common this is. The government more or less points to an industry organization's official standards and says "that's the law." But, the bodies who create those standards then try to keep them locked up, proprietary and expensive. However, as Malamud has pointed out, that's crazy, because it means that the law itself is locked up, proprietary and expensive.

To deal with this, PublicResource.org seeks to legitimately buy up these resources, and then publish them online, arguing that you can't have a secret, proprietary law that needs to be purchased. The air-duct leakage standard is just one of many that he's done this with (Malamud has already published approximately 11,000 such standards), with many more to go. But, SMACNA actually threatened him with copyright infringement, leading PublicResource.org to file for declaratory judgment, with the help of lawyers from EFF and Fenwick & West (including Andrew Bridges -- whose name you might recognize).

It appears that SMACNA for a while just ignored the whole thing, leading to an attempt to get a default judgment... and ask for attorneys' fees. That finally woke up SMACNA who claimed that it had "made an economically rational decision not to litigate its legitimate
copyright claims," but that it did not want to pay any attorneys' fees. In the end, a settlement was reached, and SMACNA has stipulated that it will not sue PublicResource.org and that it will "not make any future assertion or representation that it
claims any copyright interest" in a list of standards that it has published. While SMACNA did not have to pay attorneys' fees, it did pay PublicResource a token fee of one dollar.

EFF is, rightly, celebrating this as a victory. While it may not have set a precedent establishing that such things are legal to publish, it is still a step in the right direction, and hopefully makes it clear to others that PublicResource is willing to fight against such attacks.

“Whether it’s the Constitution or a building code, the law is part of the public domain,” said EFF Intellectual Property Director Corynne McSherry. “We’re glad SMACNA is abandoning its effort to undermine that essential principle.”

In today’s technical world, public-safety codes are some of the country’s most important laws. Public access to such codes can be crucial when, for example, there is an industrial accident, a disaster such as Hurricane Katrina, or when a homebuyer simply wishes to independently consider whether her house was built to code standards. Publishing the codes online, in a readily-accessible format, also makes it possible for reporters and other interested citizens to search, excerpt, compare, and copy them.

“It’s about time Standards Development Organizations recognized that if a technical standard has been incorporated into federal law, the public has a right to read it, speak it and copy it freely,” said Public.Resource.Org founder Carl Malamud. “We hope SMACNA has finally learned that lesson.”